RUTHFULLY YOURS

President-elect Donald Trump expressed skepticism over reports that Russia hacked the U.S. election. It is well-known that Russia — and China, and various of our friends and allies — spend a lot of time and effort trying to access American military and industrial secrets, as the U.S. does theirs. But in the case of altering the election, Trump’s skepticism appears warranted.

How did we get here?

An attempted hack into Georgia’s voter registration database was traced back to the U.S. Department of Homeland Security (DHS), according to The Wall Street Journal last month. It was a criminal act and possibly an attempt to interfere in an election. Even worse, DHS appears to have outsourced the hacking activity. One might think the breach of a state voter registration system by the Federal government would be a big story. But it was quickly replaced by the Obama administration’s claims about Russian cyber attacks on American political institutions. The FBI and DHS (yes, that DHS) then produced the Joint Analysis Report under the seal of its National Cybersecurity and Communications Integration Center.

It should be noted that the report was prepared without input from the National Security Agency (NSA), Cyber Command, the Pentagon, or the CIA. Wonder why? The answer most likely is that they declined to endorse a report that fails to deliver proof and makes accusations unsupported by evidence. If a college student turned this report in as a research paper, he would flunk the course.

The report claims to provide an analysis of the “tools and infrastructure” used by the Russian intelligence services to “exploit networks and endpoints associated with the U.S. election” as well as a “range of U.S. government, political and private sector entities.” The report calls this “malicious cyber activity” and aggregates it under the code name Grizzly Steppe.

The notion of “malicious activity” is scary and meaningless. If information is stolen, it is theft; it is a crime. But the report cannot demonstrate theft, or even describe the activity any of the identified organizations actually engaged in, so it uses non-legal “term of art.” But grizzlies from the steppe sound pretty malicious.

Equally problematic is that the report cannot tie any of the “known” Russian-located hacking activities directly to the Russian intelligence services in respect to the hack of the email systems of the Democratic National Committee or personal email accounts, such as those of Hillary Clinton and John Podesta, to name a few of the leading targets. There is plenty of notional information that the Russian intelligence services have used private entities to carry out hacking against various Western targets. And there is some important proof that on a number of occasions the Russians have carried out sophisticated cyber attacks against foreign countries. The cases that are clear-cut include Estonia, Georgia, and Ukraine, and there are surely others. But in direct attacks like those (hitting everything from power plants, banks, government agencies, military organizations, air defense systems, and communications), it does not appear that the Russians used third parties. Rather, those attacks were launched mostly by the Russian military.

Among President Obama’s ironic legacies will be how frequently this former teacher of constitutional law has been called out by the federal courts for his aggressive abuse of executive power.

The latest rebuke came on the last day of 2016 in federal court in Texas. Judge Reed O’Connor sided with eight states and three private health-care providers that sued to block a new Health and Human Services rule. This rule defines the Affordable Care Act’s prohibitions against sex discrimination in a way that plaintiffs say will force doctors, hospitals and insurers that take federal funds to cover or perform abortions and gender-transition procedures even when this runs against their best medical judgment or religious beliefs.

The HHS rule rests on a bureaucratic redefinition of sexual discrimination and the deliberate dropping of religious protections Congress included in Title IX. As Judge O’Connor noted, the Title IX prohibitions against sex discrimination passed by Congress “unambiguously” referred to the biological distinction between men and women. The HHS redefinition, he found, deserved no deference because it was not grounded in “a valid grant of authority from Congress.”

The other part of this injunction had to do with the claims by the religious plaintiffs—including a Catholic hospital system and a Christian society of doctors—that the rule violated their rights. Under the Religious Freedom Restoration Act, the government can infringe on religious exercise—but only where it has a compelling interest. Even when it does have a compelling interest, it has to choose the least restrictive way of pursuing it.

Judge O’Connor conceded that a preliminary injunction is “an extraordinary and drastic remedy, not to be granted routinely.” But he noted that Congress had not granted HHS the authority to redefine sex discrimination the way it had, and that the religious plaintiffs were likely to succeed on the merits.

In sum, another federal court has found the Obama Administration guilty of imposing its policy choices by fiat rather than doing the hard work of democracy and persuading the elected representatives of the American people. Donald Trump, please take note.

The 115th Congress flopped into Washington on Tuesday with House Republicans proposing and then dropping marginal changes to an internal ethics office. The reversal is an unforced political error, but the GOP is right that the investigative body has the power to destroy reputations without due process.

By the way, Paul Ryan was re-elected Speaker Tuesday with one GOP defection, while Minority Leader Nancy Pelosi lost four Democrats. But that news was dwarfed as the House considered rules for the new Congress, and Judiciary Chairman Bob Goodlatte offered an amendment to restructure the Office of Congressional Ethics.

The office is composed of political grandees, often former Members, and it has no prosecutorial power. But it conducts investigations into Members or staffers and makes recommendations to the House Ethics Committee. The proposal limited what information can be released to the public and barred the committee from having a press secretary. Also banned: anonymous tips.

Mr. Ryan and other House leaders opposed the rule as badly timed. But the rank and file adopted the idea Monday night anyway, only to dump it on Tuesday after denunciations from the Democratic-media complex. The left rounded up callers to deluge Republican switchboards for “gutting” the outfit. Donald Trump couldn’t resist piling on with a pair of tweets: “With all that Congress has to work on, do they really have to make the weakening of the Independent Ethics Watchdog, as unfair as it may be, their number one act and priority.”

The reality is that the office is at best redundant and perhaps worse. Democrats created the office in 2008 to deflect attention from a crush of corruption scandals, including charges against at least three Members. The left is pitching the place as an essential institution of self-government, but the Senate manages to function without a similar office.

As it is, the ethics office is a roving investigator that can publish reports with details that may not be accurate and can damage a reputation with little or no proof of guilt. Evidence of wrongdoing in travel, campaign finances and other matters can be handled by the House Ethics Committee, and if necessary law-enforcement agencies. Both are politically accountable, unlike the independent office.

Anonymous complaints are especially insidious, as subjects of an investigation may not know who is accusing them—and the accuser may never have to press his case. Nixing the communications director is also worthy: A press secretary is nothing but a designated leaker. The office is a great tool for government “watchdog” groups that are progressives posing as transparency enthusiasts, which renders the proceedings even less fair. CONTINUE AT SITE